NACUA Spring 2021 Virtual CLE Workshop : NACUA - National Association of College and University Attorneys

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Wednesday, April 14, 2021
10:45 am - 12:15 pm
	01. Welcome and Opening Plenary: When Free Speech and Inclusion Collide: Legal and Practical Considerations for Campuses Caught in the Crossfire Sponsored by Bond, Schoeneck & King PLLC
	Regular Session
	Room:
	Examine the intersection of pure speech and harassment; Confront the tension between free speech and diversity and inclusion; Discuss lawful remedies to address bias incidents without leaving a “justice gap”; and Explore how the inclusivity ideal can be fully realized on college campuses without impeding protected speech or otherwise eroding competing values that are central to the academy

1:00 pm - 2:15 pm
	02. Striking a Balance: Preventing Discrimination and Creating a More Inclusive Campus Climate While Navigating Free Expression
	Regular Session
	Room:
	What problems arise on college and university campuses as institutions attempt to address non-Title IX forms of discrimination while at the same time protecting free speech and academic freedom? What policies and practices can institutions implement in order to strike this balance? What has worked from a practical standpoint? What hasn’t? What are the legal risks that arise from combating non-Title IX discrimination on campus and what are the best ways to protect yourself?

3:00 pm - 4:15 pm
	03. Title IX: Regulatory Compliance and Enforcement Under the Trump-Era Regulations During the Biden Administration
	Regular Session
	Room:
	Short overview of actions the Biden Administration could take to unwind the final regulations and modify the enforcement stance during the interim, and what we are likely to see in place of the final rule Navigating the relatively narrow final Title IX regulations in the face of broader, more expansive obligations, including Title VII, state law requirements, risk management practices, and community expectations that developed over the past decade in light of the 2011 DCL. Practical guidance regarding the challenges colleges and universities will continue to face while attempting to comply with the final Title IX regulations, including: Determining whether conduct at issue is Title IX Conduct and addressing conduct of concern that falls outside of Title IX; The ability to use witness statements or other written hearsay evidence, such as police reports and expert reports, during a hearing; The role of investigators as witnesses during a hearing; The overlap between Title VII and Title IX; The intersection of faculty disciplinary proceedings--including tenure revocation--and the final Title IX regulations; The use of informal resolution, including restorative justice and mediation approaches, to resolve conflicts.

4:30 pm - 5:30 pm
	04A. What’s Past Is Prologue: A Discussion About Addressing Past/Historical Allegations of Discrimination Sponsored by Taft Law
	Discussion Group
	Room:
	How should past allegations of harassment be investigated? What standards should be used to evaluate allegations of past misconduct to ensure that employees and others are given due process? How long is too long (if ever) when considering past claims or conduct? What pre-employment practices can be used to give greater confidence about a potential employee’s background and past conduct? How should problematic social media be considered? How should unresolved conduct cases from prior institutions be considered? What considerations should be given to transparency and public relations?

	04B. Best Practices for Conducting a Pay Equity Analysis on Your Campus Sponsored by Taft Law
	Discussion Group
	Room:
	Strategies to develop buy-in from campus leadership and constituencies Privilege, confidentiality, and communications from beginning to end Value of engaging an outside consultant Relevant local, state, and federal laws Fixing issues discovered during a review

	04C. Campus Climate Surveys: Are We Having Fun Yet? Sponsored by Taft Law
	Discussion Group
	Room:
	Management: Who manages campus climate surveys? What role should privilege play in that decision? What are your experiences with in-house survey management, engaging third-party consultants, and hybrid approaches? What are strategies for handling units that try to engage in surveys outside of the survey framework established by the institution’s senior leadership? Fear and Fatigue: Is participation too low to be meaningful? What frequency of surveying results in fatigue? What factors should be considered before engaging in issue driven surveying (rather than routine surveying)? Treasure Trove or Minefield: How can an institution use the data that it receives? How can it communicate to the community about the data? When a survey response includes information that would otherwise be reported through existing institutional processes (such as a report to the Title IX Office), what strategies could an institution use to address this? For public institutions, what strategies can an institution use to navigate the public records implications?

	04D. Campus Unrest: Exploring the Role Between Campus Police and the Social Justice Movement Sponsored by Taft Law
	Discussion Group
	Room:
	The role of campus police and how it differs from local law enforcement Responding to university protests when participants include faculty and administration Managing counter protest Defund The Police Movement

	04E. Asian Americans: The New "Targeted" Minority Group? Sponsored by Taft Law
	Discussion Group
	Room:
	How is your campus addressing misleading stereotypes, social media harassment, and societal and campus-based violence targeting the Asian and Asian American community? How, if at all, have recent admissions decisions and accompanying litigation exacerbated stereotypes and impacted your institution’s ability to recruit and retain Asian and Asian American students? How have U.S. immigration and foreign policies, both in the Trump and Biden administrations, impacted your campus’ ability to recruit graduate students and post-doctoral fellows from China, and what is your institution doing to remain welcoming of students from other nations while complying with government regulators? How does your institution manage its contacts with the U.S. Department of Justice, the FBI or other federal law enforcement agencies in regard to alleged “foreign influence” issues? How does your institution balance the legitimate concerns of the federal government against the potential profiling of Asian American scholars? How is your institution handling its reporting requirements under Section 117 of the Higher Education Act, and how, if at all, are you working with campus federal relations officers to advocate that information requests be scoped narrowly and fairly to pursue legitimate government interests?

Thursday, April 15, 2021
11:00 am - 12:15 pm
	05. Diversity Initiatives: Where Are We, and How Far Can We Go?
	Regular Session
	Room:
	Diversity in admissions, financial aid, and employment Consideration of race, gender, and other protected classifications Pending cases and new administrative guidance Innovative and effective diversity strategies

1:00 pm - 2:15 pm
	06. Responding and Managing Religious Diversity Issues in the 2020s
	Regular Session
	Room:
	Addressing religious accommodation issues in academic and employment settings Navigating religious accommodation requests in the use of campus space Ten years after CLS v. Martinez: Latest developments on religious student groups Impact of Bostock and potential Title IX issues for religious universities Executive Orders: Effect of Executive Order 13899 (“Combating Anti-Semitism”) on college campuses, federal agencies’ definitions of anti-Semitism when making determinations, and efforts to navigate executive orders without violating freedom of speech or academic freedom.

2:15 pm - 3:00 pm
	NETWORK1. Networking Lounge
	[none]
	Room:
	No specific agendas or topics. Just pure networking. Connect with your colleagues in these open zoom rooms.

	NETWORK2. Networking Lounge: Meet the Experts from Session 05. Diversity Initiatives
	[none]
	Room:


3:00 pm - 4:15 pm
	07. Disability and Accommodation Through COVID-19: The Fundamental Nature of Academic Programs and Essential Functions of Jobs As We Plan to Return to Campus
	Regular Session
	Room:
	How remote instruction and remote work arrangements may have complicated an institution’s ability to advance its desired positions on the fundamental nature of an academic program or the essential functions of a job Counsel’s role in guiding college and university leaders to evaluate what they deem to be truly essential in the workplace and the academic program--particularly when contemplating a position that face-to-face instruction or in-person work is be deemed essential Legal guidelines and factors that provide the guideposts for institutions’ evaluation of requests for continued remote work or academic accommodation requests and anticipated exceptions requests to COVID-19-related health and safety requirements for in-person learning and working Safety requirements for in-person learning and working

4:30 pm - 5:30 pm
	08A. Parental Status and Caretaker Discrimination Sponsored by Taft Law
	Discussion Group
	Room:
	Protected classifications under federal, state, and local law that have come into sharp focus in light of remote work Impact of remote work and caretaker responsibilities on work productivity (real and perceived) and subsequent impact on scholars’ abilities to advance in their respective fields Impact of extending the tenure clock Title VII and Title IX implication of adverse employment actions undertaken because of work productivity issues

	08B. The Title IX Guessing Game: Navigating the Final Rule in an Ever Changing Landscape Sponsored by Taft Law
	Discussion Group
	Room:
	Implementation of the Final Rule in a Cost-Effective Manner Navigating Complex Cases A Campus-wide Approach to Preventing and Addressing Reports of Misconduct Hearings for Pre- and Post-August 14, 2020 Allegations Facilitation of informal resolution

	08C. Discrimination in Academic Medical Centers: Uncharted Territory Sponsored by Taft Law
	Discussion Group
	Room:
	Discuss effective practices to centralize required reporting obligations related to discrimination and harassment, peer review, medical boards, credentialing, and external authorities (child protective services and law enforcement) Address questions – and solutions – regarding the application of the final Title IX regulations to academic medical centers Identify effective collaboration and partnership practices between the academic and healthcare units Discuss effective practices for reporting, documentation, investigation, resolution, and remedy

	08D. When Everything is #Digital: Navigating Service Providers, Reluctant Stakeholders, Litigation, and Everything In Between Sponsored by Taft Law
	Discussion Group
	Room:
	Discuss web accessibility litigation, Office for Civil Rights complaints, and the new administration Consider effective campus policies and procedures Explore strategies around athletics sites, interactive pages, performing arts programs, and other tricky areas Discuss procurement issues related to accessibility Identify best practices regarding accessibility during the pandemic

	08E. The Role of Counsel in Sport Sponsorship Decisions Sponsored by Taft Law
	Discussion Group
	Room:
	The law is evolving on sport elimination cases and plaintiffs’ challenges. The most pressing question in this space is: “Are you making sure you are conducting a thorough analysis, including a reputation and litigation risk analysis?"

Friday, April 16, 2021
11:00 am - 12:15 pm
	09. Breaking Up is Hard to Do: Avoiding Discrimination Claims in Furloughs, RIFs, and Program Closures
	Regular Session
	Room:
	How to design a non-discriminatory program closure, RIF, and/or furlough OFCCP, EEOC, and Adverse Impact-conducting a defensible adverse impact analysis for layoffs and RIFS Avoiding and addressing potential discrimination claims and litigation arising from program closures, RIFs, and furloughs

1:00 pm - 2:15 pm
	10. Are the ‘Kids’ Alright? Practical Responses to Student Mental Health Challenges
	Regular Session
	Room:
	Practical approaches to help students who are in need (including, but not limited to, those who pose an imminent threat of harm to self) that are informed by institutional context and the unique needs of diverse student populations, including at HBCUs, community colleges, and technical schools and in rural and urban environments How to support clients in focusing on evidence-based assessment of behavior and conducting timely, individualized case-by-case-assessment How to advise clients on the “regarded as” framework under the ADA, in a constructive and clear way that empowers them to take action when needed

2:15 pm - 3:00 pm
	NETWORK3. Networking Lounge
	[none]
	Room:
	No specific agendas or topics. Just pure networking. Connect with your colleagues in these open zoom rooms.

	NETWORK4. Networking Lounge: Meet the Experts from Session 03. Title IX
	[none]
	Room:


3:00 pm - 4:15 pm
	11A. Retaliation 2021: What's New and What's Important to Know Now
	Regular Session
	Room:
	Update on litigation and OCR cases and agreements First Amendment and free speech retaliation issues Tools to mitigate retaliation complaints in a COVID-19 world

	11B. All Speech Considered: Expressive Activity in a Virtual World
	Regular Session
	Room:
	Act One: Not so Free Speech - Explore the boundaries of protected speech, harassment, and true threats at both public and private institutions Act Two: Zoom University - Examine how remote learning has altered the contours of a classroom and classroom speech by faculty and students Act Three: Twitter Tantrums and Facebook Fights – When, and how, can institutions respond to student and employee speech on social media? Final Act: - What are the shared responsibilities of the campus community and the institution in combatting hate speech and speech-based harassment and retaliation?

4:30 pm - 5:45 pm
	12. Supporting Institutional Commitments to Diversity and Inclusion: The Contours of Risk Whispering Consistent with the Rules of Professional Conduct (Ethics Session)
	Regular Session
	Room:
	Who is the “client” in making decisions in this important area, and what are the roles of counsel in advising institutions? Examine how moral, economic, social, and political factors influence legal advising regarding diversity/inclusion efforts Consider how counsel can develop greater self-awareness of their own beliefs, identities, and biases in this area and leverage these factors to provide better guidance to clients Explore the tensions that present themselves when the law is unclear or contradictory to institutional mission, and where institutions may want to push the boundaries or advocate for change